KTUNAXA NATION COUNCIL V. BRITISH COLUMBIA
Amnesty International was represented in this case by Margot Venton, Kaitlyn Mitchell, and Randy Christensen
WHAT IS THIS CASE ABOUT?
This case concerns the proposed building of a ski resort in the Upper Jumbo Valley in British Columbia, at the heart of an area held by the Ktunaxa Indigeous peoples to be of central spiritual significance. According to Ktunaxa spiritual beliefs, the area is the Grizzly Bear Spirit’s home or territory, and building the ski resort on that territory would constitute a desecration which would irreparably harm their ability to exercise their spiritual beliefs.
The proposed ski resort was approved by the British Columbia Minister of Forests, Lands and National Resource Operations on 20 March 2012. The Ktunaxa Nation Council sought judicial review of the Minister’s decision to approve the project, arguing that approving the ski resort violated their freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms (Charter) and their right to be consulted and accommodated under section 35 of the Canadian Constitution.
AMNESTY INTERNATIONAL’S INTERVENTION
Amnesty International intervened before the Supreme Court of Canada in the Ktunaxa Nation Council’s appeal of a British Columbia Court of Appeal judgment finding that the Ktunaxa’s rights under section 2(a) of the Charter or section 25 of the Constitution were not violated.
In our intervention, Amnesty International argued the Supreme Court should conduct its analysis of the issues consistently with international human rights law norms. We did not take a position on the facts alleged by the parties, but were supportive of the Ktunaxa’s interpretations of freedom of religion and duty of consultation, accommodation, and consent in Canadian law, as they are consistent with international norms.
Amnesty International’s submissions highlighted that international law accords special protections for Indigenous peoples to ensure substantively equal protection under general international human rights instruments. States must provide a high standard of protection for all rights of Indigenous peoples and Indigenous persons, consistent with the recognition that a history of discrimination, marginalization, and dispossession has left Indigenous peoples in a situation of extreme disadvantage and greatly heightened risk of further harm. In particular, international law has established rigorous standards to protect Indigenous peoples’ relationships to their traditional lands, and especially to spiritually important places, in order to protect and fulfil Indigenous peoples’ rights to culture, identity, livelihood, health, and a wide range of associated rights. Rigorous standards are necessary because land use decisions affecting the traditional lands of Indigenous peoples can have significant human rights implications that may not be apparent to the decision-makers.
STATUS OF THE CASE
The Supreme Court hearing took place on 1 December 2016. No judgment has been rendered yet.
British Columbia Court of Appeal judgment in the Ktunaxa case
Amnesty International’s application to intervene before the Supreme Court of Canada in the Ktunaxa case
Amnesty International’s submissions to the Supreme Court of Canada in the Ktunaxa case
"It's not 'consultation' if government isn't listening" (28 November 2016)